DADA Vs. COLLECTOR

JUDGEMENT

(1.) Application moved by third party applicants seeking their impleadment in the suit has been allowed by the trial Court in view of order passed below exh. 13 in Regular Civil Suit No. 320/2011. The suit is presented by petitioner/plaintiff raising challenge to the notice issued by the Tahsildar directing the petitioner to remove encroachment allegedly made on the public way. According to plaintiff, there is no public way as contended in the notice and construction is made by him on the area belonging to him. Third party applicants in their application contended that they are the adjoining owners of the land and the suit way is being used by them as access to their property. It is contended that petitioner is extending threats and prohibiting third party applicants from using the way. As such they moved public authority for taking action against petitioner. Trial Court, considering the contentions raised by third party applicants that they would be directly affected by result of the suit and they have cause of action against petitioner, permitted their impleadment in the suit.

(2.) Learned counsel for petitioner assailing the order passed by the trial Court contends that plaintiff is a dominus litus and no relief is claimed against third party applicants and the suit would be maintainable in their absence. It is thus contended that respondents are neither necessary nor proper parties to the suit. Reliance is placed on a judgment in the matter of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay and others, 1992 AIR(SCW) 846 Suit was presented in the reported matter challenging validity of notice issued by Municipal Corporation as well as seeking injunction. Plaintiff was in possession of the service station in view of the dealership agreement executed in the year 1974 and had erected service station in the land held by respondents therein. Hindustan Petroleum Corporation presented application seeking impleadment in the suit contending that the Corporation has material to show that the construction raised by plaintiff is unauthorised. Trial Court directed impleadment of respondent i.e. Hindustan Petroleum Corporation as party defendant which was subject matter of challenge in the petition presented to this Court. This Court, however, dismissed the petition which order was challenged before the Apex Court. While dealing with the contentions raised by petitioner/plaintiff, it was observed by the Apex Court that merely because respondent/ Hindustan Petroleum Corporation has material to demonstrate that construction raised by plaintiff is unauthorised will not make the Corporation necessary or proper party. The Corporation can be at the best proper witness in the suit. It was observed by the Apex Court that the Corporation had no legal entitlement nor has any cause of action against plaintiff. In paragraph nos. 14 and 15 of the judgment it is observed thus:

(3.) Learned counsel for respondents has invited my attention to the judgment of the learned Single Judge of this Court in the matter of Chandrakant Dharma Bhonu vs. Pandurang Ramchandra Dandekar and another, 2004 AIR(Bom) 374 In the reported matter application tendered by adjoining owner who was directly affected by unauthorised construction was entertained on the ground that third party applicants have cause of action and they would be directly affected by determination of issues those would be raised in the suit. In view of these facts and circumstances, I am of the view that trial Court is well within its limits in entertaining the application and permitting third party applicants to claim impleadment in the suit. Petition is devoid of substance hence stands rejected. Pending civil application, if any, does not survive and stands disposed of.